Refugee And Migrant Forum of Essex And London & Anor, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal arises from a challenge to the implementation of a programme introducing digital proof of immigration status (eVisas) and the lack of non-digital status documentation for migrants on "section 3C leave". The Claimants comprised an organisation (hereinafter "Company A") and an individual ("Plaintiff"). Proceedings followed an earlier judgment of the court dated 19 November 2025 ("the November judgment") in which the second ground of appeal was adjourned for further written submissions and, if necessary, an oral hearing. Further submissions were filed and an oral hearing took place on 22 January 2026. The Defendant was represented by Attorney Malik; the Claimants were represented by Attorney Harrison and Attorney Luh. The adjourned ground concerned whether the Defendant had breached the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 (the duty to have regard to the best interests of children) in the course of discharging functions that led to the absence of status documentation for those on section 3C leave.

Legal Issues Presented

1. Whether, in the policies and decisions leading to the phased introduction of eVisas and the exclusion of those already on section 3C leave from immediate digital documentation, the Defendant exercised functions that engaged the section 55 duty.
2. Whether the Claimants' pleading sufficiently identified the specific decision(s) said to attract the section 55 duty.
3. If there was a breach of section 55, what relief was appropriate: whether the declaration made below (which effectively required immediate provision of digital documents to all on section 3C leave) was lawful or whether any relief should be limited to quashing or a declaration directed to the decision-making process.
4. Whether, even if there had been a section 55 breach, the Defendant would have reached a different decision (including consideration of section 31(2A) of the Senior Courts Act 1981 and the court's discretion to refuse relief on practical grounds).

Arguments of the Parties

Defendant's Arguments (Attorney Malik)

• The Claimants' pleading failed to identify any particular decision; the claim described only an "ongoing" failure to provide status documentation and thus did not properly target a decision that could be quashed or declared unlawful under section 55.
• The Defendant reasonably understood the pleaded case to be a challenge to decisions said to be taken at the point a migrant transfers to section 3C leave; on that basis the Defendant contended no function was exercised at that point because entitlement arose automatically by law.
• When the Defendant accepted at the hearing that a decision not to provide documentary proof to all on section 3C leave engaged ancillary administrative functions and thus section 55, that did not cure the pleading defect; the judge's declaration (para. 2 of the Order) improperly treated the substantive outcome as the unlawful act rather than a failure in process.
• Evidence showed that the staged roll-out was necessary and could not reasonably have been abandoned; accordingly, even if section 55 applied, the Defendant likely would not have reached a different substantive decision, engaging section 31(2A) and discretionary refusal of relief.
• The Claimants should not be permitted to shift the target of their case at this late stage (no Respondent's Notice had been filed to expand or change the decision challenged).

Claimants' Arguments (Attorney Harrison)

• The Claimants' primary case was that the Defendant made a decision not to provide eVisas to those already on section 3C leave and that that decision attracted the section 55 duty; the SFG and subsequent submissions identified the general failure to provide status documentation.
• The New Plan for Immigration (May 2021) and later materials showed ministerial decisions and prioritisation choices in the phased roll-out; those decisions were proper targets of a section 55 challenge.
• The Claimants did not rely on the alternative argument that section 55 could be triggered merely by the operation of a system; they contended a decision was made and was challengeable.
• Even if immediate universal provision was impracticable, prioritisation could have considered groups more likely to have dependent children.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the matter in light of the pleading, evidence and the November judgment. It identified a central procedural defect: the Claimants did not plead the specific decision said to have engaged section 55, instead describing an ongoing substantive state of affairs (failure to provide status documentation). That omission led the Defendant to plead and adduce evidence responding to a different characterisation of the claim. Although at the hearing the Defendant accepted that a decision not to provide documentary proof to all on section 3C leave engaged ancillary administrative functions and thus section 55, the judge below framed relief (para. 2 of the Order) as condemning the substantive outcome rather than declaring a process failure. The court held that section 55 imposes a process duty: appropriate relief for a breach is quashing or declaration directed to the unlawfulness of the decision-making process and a requirement to take the decision afresh with due regard to children's best interests, not an order that presumes the substantive outcome.

The court concluded the pleading defect caused real prejudice to the Defendant: had the impugned decision been properly pleaded, the Defendant would likely have deployed fuller evidence (including on practicality and sequencing) and sought to rely more clearly on section 31(2A) and discretionary grounds to resist relief. The available evidence suggested it was unlikely that a section 55-compliant exercise would have produced a different substantive outcome (immediate universal provision of eVisas was implausible), and there was a real chance that a different relief outcome would have followed if the Defendant had been put on notice of the precise decision challenged. For these reasons the appeal was allowed on ground 2.

The court emphasised that failure to identify a decision at the outset is not inevitably fatal to a section 55 claim in every case; whether it is fatal depends on prejudice and the circumstances. The court therefore allowed the appeal on the procedural ground identified but did not treat the issue as always dispositive in other cases.

Holding and Implications

APPEAL ALLOWED ON GROUND 2

Holding: The court allowed the appeal to the extent that para. 2 of the judge's Order was defective because it declared unlawfulness in terms of the substantive outcome (immediate provision of digital documentation to all those on section 3C leave) rather than identifying a failure in the decision-making process under section 55 and ordering the decision-maker to re-take the decision after a section 55-compliant process.

Implications: The direct effect is that the declaration below, insofar as it required immediate provision of digital proof to all migrants on section 3C leave, cannot stand. The court did not establish a new substantive right requiring immediate universal issuance of eVisas and did not rule that a section 55-compliant exercise would necessarily have produced a different substantive outcome; the decision emphasises procedural correctness in pleading and relief for section 55 challenges and does not purport to set a broader precedent obliging a particular substantive implementation.